The Director of Public Prosecutions v Scott Donegan

APPROVED JUDGMENT NO REDACTION NEEDED THE COURT OF APPEAL Neutral Citation: [2025] IECA 168 Record No: 247/2023 Edwards J. McCarthy J. MacGrath J. IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993 Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Applicant V SCOTT DONEGAN Respondent JUDGMENT of the Court delivered by Mr. Justice Edwards on the 5th of June, 2025. Introduction 1. This is an application brought by the Director of Public Prosecutions (i.e., “the applicant” or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 (“the Act of 1993”) for review of the sentences imposed on Mr. Scott Donegan (i.e., “the respondent”) by the Circuit Criminal Court, Ennis on two separate Circuit Court Bills, on grounds that they were unduly lenient. 2 2. On the 25th of September 2023 the sentencing judge at first instance imposed consecutive sentences on the respondent in respect of the two said Bills of Indictment, being Bills No’s CE 38/2021 and CE 26/2023, respectively. The total sentence imposed was one of 103 months (or 8 years and 7 months) with the final 9 months thereof conditionally suspended, and to date from the 15th of November 2022. 3. The first offending in time, which was charged on indictment, was the subject of Bill No CE 38/2021. This contained a single count of threatening to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997. The respondent was sentenced to 20 months (1 year and 8 months) for that offence. 4. The second offending in time was the subject of Bill No CE 26/2023. This related to two charges, subsequently designated Count No 1 and Count No 2, respectively (to distinguish them inter se), in respect of which the respondent had signed pleas of guilty before the District Court, for offending conduct which was committed while the respondent was on bail for the offence to which Bill No CE 38/2021 relates. Count No 1 on Bill No CE 26/2023 related to an offence of false imprisonment, contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997; while Count No 2 on the same Bill related to an offence of production of an article capable of inflicting serious injury in the course of a dispute, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. The respondent was sentenced to 83 months (6 years and 11 months) on Count No 1, and to 25 months (2 years and 1 month) on Count No 2. These sentences were to run concurrently inter se, and were to date from the 15th of November 2022. 5. The sentencing judge further ordered that the sentence for Bill CE 38/2021 should be consecutive to the longer of the two sentences imposed on Bill CE 26/2023, i.e., it was to commence on the lawful expiration of the sentence imposed on Count No 1 on Bill No CE 26/2023. 3 Factual Background CE 38/2021 6. At the sentencing hearing of the 26th of July 2023, a Garda Margaret Leahy gave evidence in relation to the factual background to so much of the respondent’s offending as was charged on Bill No CE 38/2021. 7. She testified that on the 19th of April 2021, at an address in a village on the west coast of Ireland, a Ms. Wickham was getting cameras installed in her house. She had retained a named security contractor to fit those cameras. This security contractor had an employee by the name of William Martin (i.e., “the victim” in respect of this crime). 8. Mr. Martin arrived on the scene and commenced his work on installing the cameras. He engaged in unloading ladders and getting set up for the job in hand. The respondent was at home on the day in question. 9. Garda Leahy summarised the context and the nature of the threat to kill or cause serious harm as follows: “A. Yes, Judge. On the 19th of April 2021, Mr Martin was installing CCTV cameras at No 31, the house of Georgina Wickham. And she is the neighbour of the accused in this case, Scott Donegan, who resides at No. 30, would have been at the -- came out of his house at No. 30 Lios na Si, and then an interaction occurred where Mr Donegan spoke with Mr Martin and started to verbally abuse him. And during that altercation he alleges -- it is alleged by Mr Martin that Mr Donegan threatened to stab him to death and called him a scumbag and he was going to kill him, which is the statement that he made to me, Judge. This altercation took place. There was -- outside where there were CCTV cameras installed in Mr Donegan's house which captured the actual incident itself. Mr 4 Martin retreated back into Ms Wickham's house after the altercation and phoned his boss, Mr Brian Fitzgerald, and informed him of what was after occurring. He said that he didn't feel comfortable staying in the area to install the cameras due to the threat that was after being made to him by Mr Donegan. So, he was instructed by Mr Fitzgerald, the boss, Brian Fitzgerald, to -- best to leave the area and come away from the job as he felt that he was -- due to threat that it could escalate and that it was felt that it was best for him to leave the job, which he did immediately. And then he made contact with gardaí the following day and made them aware of the altercation. And a statement was taken -- subsequently taken by myself on the 20th of April 2021. Q. And I think in that statement I think he described having -- setting up the job and the accused man coming out and started roaring and shouting at him? A. Correct, Judge. Q. I think he indicated that he said hello to Mr Donegan and Mr Donegan started shouting: "Don't you fucking 'hello' me, you fucking knacker"? A. Correct, Judge. And it continued on from there with verbal abuse in relation to Mr Martin himself, Mr Martin's family, and then his friends. Q. And I think Mr Martin in his statement of intended evidence said that the accused man said to him that he'd stab him to death? A. Yes, that's his statement of evidence is what he said.”. 10. Evidence was given that Ms. Wickham was in her kitchen, and she heard a commotion. She heard what was after occurring and from the hall in her house, she took a voice recording of the incident which captured a portion of the altercation. 11. In addition, CCTV footage, which had audio, was recovered from the house of the respondent following execution of a warrant obtained under s. 10 of the Criminal Justice 5 (Miscellaneous Provisions) Act 1997. This CCTV footage was played during the sentencing hearing, and is described on the transcript as capturing “the nature and the flavour of the interaction on the day in question”. While it did not capture the full extent of the threat to kill, the subject matter of the charge it captured it in part, a matter which was explored in cross-examination as follows: “Q. Yes, just very briefly, Garda Leahy. I think we've heard what was recorded but there isn't in fact -- on the tape there isn't any recording of words, including a threat to kill; isn't that right? A. No, Judge, there's just one part in here is that: "I'll stab you to bits," but that has not got -- the rest has not been received. Q. It's not there? A. No”. 12. Following a report of the incident to gardaí, the respondent was arrested and detained for the proper investigation of the offence in respect of which he had been arrested. He was interviewed while in detention and, per Garda Leahy’s testimony, during garda interview “he admitted there was a verbal altercation and there was words made, but he did not say he threatened Mr. Martin to kill him”. He stated, “that there was verbals, that was it”. 13. The respondent was charged on the 22nd of April 2021, and subsequently, he was released on bail with conditions. 14. The respondent entered a late plea of guilty to the sole count on this indictment on the morning of his scheduled trial. CE 26/2023 15. At the sentencing hearing of the 26th of July 2023, a Detective Garda Corkery gave evidence in relation to the factual background of the respondents’ offending as charged on Bill No CE 26/2023. 6 16. In respect of these matters, the respondent had been sent forward to the Circuit Court for sentencing having signed pleas of guilty before the District Court to charges of (i) false imprisonment, and (ii) production of an article capable of inflicting serious injury, that item being described as a large kitchen knife, which was produced during the false imprisonment on the 9th of November 2022. The location of both offences was the residence of the respondent at the relevant time. 17. The evidence established that a Ms. R (i.e., “the victim” in respect of these offences) had been in a relationship with a Mr. F which had come to an end in around June 2022. They had maintained a good relationship and were co-parenting their two children thereafter. 18. Ms. R met the respondent in August 2022 in [her locality]. She helped the respondent to secure residence in an Airbnb for a period of close to one month. The respondent and Ms. R had an intimate relationship and, per the evidence of D/Gda Corkery, “after some time things deteriorated”. She began to see “another side” of the respondent, she learnt about his criminal history, and she began to see that he was drinking excessively and taking cocaine excessively in front of her. Evidence was adduced to the effect that the respondent “became a different person under the influence and became more aggressive and more violent and threatening”. The respondent also began “bombarding” Ms. R with messages through social media platforms. 19. On a particular date (provided in evidence), Ms. R’s grandmother passed away and there was a wake for her. Ms. R did not want the respondent to attend, yet he was present at the wake outside the church in a car, watching and waiting. Ms. R had described in a statement to gardaí being in fear over the respondent’s general aggression. 20. As funeral arrangements were being made Ms. R came across the respondent in the car park opposite the church and she went into the car and told him to drive home to his place. For some time she had been fearful that the respondent would disclose their 7 relationship to her ex-partner, Mr. F, and the fact that she had had an affair prior to the ending of her relationship with Mr. F. Due to being constantly messaged by the respondent, Ms. R had blocked him on certain social media platforms, but he had used other social media platforms to try to communicate with her. 21. On the day of the funeral, Ms. R duly attended it and after the burial went to a public house in a nearby village. The evidence was that while there she was in receipt of numerous messages from the respondent. He sought to lure her to his home by threatening to disclose the timeline of their relationship to Mr. F if she did not attend. She felt she had no choice, that she had to go and meet the respondent and thus, she agreed to be collected by him and dropped to his house. Ms. R was aware that the respondent had Mr. F’s phone number and that he had contacted him in a pretence related to his work and had screenshotted the message to Ms. R “to put more fear in her”. Once at the respondent’s house, she had no means of transport to leave the area. 22. Ms. R was dropped at the respondent’s house at approximately 7 pm. The respondent was very aggressive towards her. He became exceptionally paranoid, and he took and kept possession of her phone for some period and would not allow her access to it. Ms. R became very distressed, very upset, and she was crying. She was forced to sit in a chair in the sitting room of the house, and she described to gardaí “being frozen to the chair out of fear” due to the “aggressive behaviour” of the respondent towards her. At one point, the respondent ran at her with a large kitchen knife, putting her in fear. He also used the knife to stab the surface of a mantlepiece that she was next to, with repeated stabbing actions. 23. The respondent believed that he and Ms. R were still in a relationship and was of the belief that if Mr. F gave his consent to their relationship that everything would be all right. 24. The respondent grabbed Ms. R by the throat and squeezed her windpipe, making her cough. He told her he had a shotgun in his car and that he had a Glock handgun over the 8 fridge, and he put on latex gloves when mentioning these weapons, which according to Ms. R led her to believe all the more what he was saying. During the course of the next two hours, the respondent rang Mr. F and had a 15-minute conversation with him wherein he outlined that he was in a relationship with Ms. R. Prior to making this phone call, the respondent had threatened Ms. R not to open her mouth. The call was put on loudspeaker, and Ms. R was able to hear both sides of the conversation. Mr. F wished Ms. R all the best in any future relationship and said he only wished the best for her. The respondent was drinking vodka and taking cocaine in Ms. R’s presence. After the phone call, he gave Ms. R back her phone. She tried to ring a friend to come and collect her, but she was unable to get through to her. Eventually she did get through to her friend. The friend arrived to collect her after 11 pm that night. However, Ms. R had not been allowed to leave the respondent’s house from 7 pm until after 11 pm that night. According to D/Gda Corkery, Ms. R had related to gardaí that during that time: “she was in constant fear that her life was in jeopardy. She was in constant fear of the knives that were being used. She was in fear over firearms that could potentially be in the house. She was upset. She was crying. She was scared throughout the whole lot, and she says she was frozen to the chair”. 25. The respondent was arrested on the 13th of November 2022 for offences committed by him during this incident. He was duly detained at a Garda station pursuant to statute for the proper investigation of those offence(s) and was interviewed while in detention. Prior to his arrest a search of his residence was conducted where a number of mobile phone devices were seized, as well as vodka bottles and evidence linking to the account given by Ms. R, such as photographs taken of stab marks in the mantlepiece made by a knife. The knife described by Ms. R as being in the possession of the respondent when the respondent was said to have lunged at her, was not found during the search. However, a knife matching that description 9 was seen in a video made by the respondent on the night in question. The respondent was interviewed on six occasions and accepted that Ms. R was at the house but denied falsely imprisoning her or indeed having engaged in any criminal conduct during her attendance there. 26. On the 15th of November 2022 the respondent was charged before the District Court with false imprisonment of Ms. R and with producing a knife capable of inflicting serious injury in the course of a dispute. The respondent intimated his intention to plead guilty to those two offences at the earliest opportunity, and he duly signed pleas of guilty in the District Court and was sent forward to the Circuit Criminal Court for sentencing, under Bill No CE 26/2023. He was sentenced in the Circuit Criminal Court on the 25th of September 2023, both for these offences, and for his earlier offending charged on Bill No CE 38/2021 involving Mr. Martin. Victim Impact Statements 27. In relation to the offence the subject matter of Bill CE 38/2021 Mr. Martin prepared a victim impact statement which Garda Leahy read into the record as follows: “To whom it concerns, on the 19th of April 2019, I attended an address in Miltown Malbay to install cameras at the neighbour of the defendant, as I have done for countless customers for nearly 20 years. In all those years, I've never been subjected to the abuse and threats to my life as I was that day. As soon as he saw me arrive, he was straight out to me, shouting abuse and slanders, obscenities about my family members and friends, and he made threats to stab me to death. Obviously, I was in instant fear for my life, having read and heard about his previous history of violence, and I wasn't taking any chances, so I left. Ironically, I then had to install cameras in my own house on advice from gardaí and also for my family's peace of mind. I found it hard to go back to the estate for a period of time after and couldn't call to see my 10 mother, who also lives in the same estate. She too became terrified when she heard about the events, having had previous disputes with him. It has been a massive relief for me and my family and the whole town since he has been removed and we hope it stays that way for good.” 28. In relation to the offences the subject matter of Bill No CE 26/2023 Ms. R gave oral victim impact evidence as follows: “Okay. In a matter of weeks my whole world was turned upside down by a man who I had trusted, and I would not wish what was done to me to happen to another man or woman ever. Scott Donegan legally changed his name from Paul McMenamy to avoid his past being made apparent, convicted of assaults on three previous partners, the last of whom he left with a brain injury. I was subjected to almost two weeks of harassment, stalking, him threatening suicide and threats made against me, my family, and my friends because I did not want to continue a relationship with him after the reality and gravity of the web of lies that he -- that had been told to me became apparent. Lies about his past and lying that he had been recently diagnosed with cancer since meeting him. After begging to be left alone, he intensified his threats, stalking and emotionally blackmailing me to meet him at his home on the 9th of November, where he kept me against my own will, took my phone from me, threatened me with a knife, said he had guns and that he would butcher me. I did not want to go to his home that night, but he said if I did not meet him face-to-face he would arrive to my own home unannounced, contact the father of my children to destroy my life and ruin my relationship with him, leaving me homeless and have my children taken from me. He did this on the same day of my grandmother's funeral while I was grieving and 11 extremely upset. He took advantage of my vulnerable and emotional state, and I felt I had no other option but to meet him, but did so with the agreeance that his friend, who he arranged to take me to him, would wait in his car for me so I could leave at any time I wanted. But he had other plans and told his friend to leave without my knowing. I was left stranded with no way out. The person who once said that they would never hurt me, ironically, is the person who has damaged me beyond repair because I chose to say no. All because I stood up for myself and put a boundary in place. I refuse to be manipulated, emotionally abused and part of his fantasy world any longer. I have never thought it possible to experience fear like what I did on that night while he held a knife to me, put his hands on me, screamed in my face that he would butcher me, the threats increasing as the time did, waiting and wondering is this the moment I would be stabbed with a knife instead of it plunging into the mantelpiece beside where I sat. The reign of terror imposed on me, despite begging him to stop, falling on deaf ears. I believed I would be killed by him and never see my children or my family again. I said no. I did not give consent for his hands to be put on me and for my freedom to be taken away that night. My basic human rights to say no and to walk freely out of the door were snatched away from me and denied. When I managed to get my phone back and make contact with my friend and get out of the house, I continued to receive threats, attempted contact through phone calls, emails, texts on all social media platforms. He even used PayPal as a means to contact me. I will forever be grateful to my friends and my family, and also to his family, for 12 supporting me to go to the gardaí for help. I close my eyes at night and I hope not to wake as I know I will, screaming from nightmares where I can again feel his hands on my neck, the spit from his mouth as he screamed in my face and hear him laughing at me, taking pleasure as I begged him to stop, while holding a knife to me saying he would butcher me. The psychological and emotional scars as a result of the trauma that he has left me with are very real. I suffer with PTSD, anxiety, and panic attacks, and on many occasions have had suicidal thoughts. I've been prescribed medication so as to be able to function throughout the day and sleep at night. I receive counselling and individual psychology to try and process the horrific abuse and acts of violence that were carried out on me by him. I am left with the flashbacks, the habits I have created to survive, the over thinking, hypervigilance, and mistrust in everyone. I am left with the trauma, devalued, and dehumanised by him. My work and personal life both drastically affected by the abuse that I have suffered at his hands. There have been days where my family have had to scoop me off the floor as I've been so consumed by fear that he would turn up and hurt me again. I left my home with my children as the threats continued, that we were at risk. I was unable to work for months and since returning, find daily tasks difficult. Part of my role is visiting families in the community, something I now dread and often results in panic attacks as I am terrified about who lies behind every door and if I will be able to get back out again. I plan my escape route in all buildings I enter and avoid going anywhere unfamiliar. I sleep with my keys under my pillow so I know I can always get out and reduce the risk of being trapped and held against my will again. The 13 spark I once had and the lust for life drained from me and I don't know if I'll ever get that back, living in a constant state of fear looking over my shoulder with the worry he's going to have me hurt. My confidence has been destroyed and my relationships with others impacted significantly also. He stole so much from me because I did not want a relationship with him. To feel a human's hands around your neck, a knife being waved in your face with the threat of being butchered is a trauma I hope nobody here has the misfortune of ever experiencing and fully understanding. The devastating destruction that has been caused at the hands of one individual is not possible to put in words. My life will never be the same again as a result of his choices and actions. He's a danger to society, and he has scarred me and damaged me for life.” Personal Circumstances of the Respondent 29. Detective Corkery confirmed that the respondent was born on the 14th of September 1985. He was 38 years-of-age. He is originally from the Tallaght area of Dublin. He moved to the west of Ireland in around February 2018 following release from prison. In around this time he changed his name by deed poll. His original name was Paul McMenamy, and has now changed it to Scott Thomas Donegan. 30. The respondent has 11 previous convictions. His first conviction was on the 9th of March 2005 and his most recent conviction was on the 24th of May 2022. He has six District Court convictions, two Circuit Court convictions and one conviction was recorded in the Court of Criminal Appeal. Of his 11 previous convictions, four were for crimes of violence against women, six related to road traffic offences and one related to an offence of obstruction under the Roads Act 1993. D/Gda Corkery stated: “in relation to his assault convictions, they're all on assaults of crimes of violence against women. In relation to all the assaults, they're all ex-partners of his. There's 14 two assault convictions. A section 2 assault and a section 3 assault are in relation to one victim on two different dates. And the other section 3 assault and the section 4 assault are on two additional ex-girlfriends, ex-partners.”. 31. The most serious previous conviction was an offence of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), to which D/Gda Corkery had alluded, recorded at the Court of Criminal Appeal. Upon being asked to elaborate, D/Gda Corkery stated: “Yes. In relation to that, the offence date was in February 2012, where he viciously assaulted his partner at the time causing severe head injuries resulting in her going to Beaumont hospital with life changing injuries. Prior to an ambulance being called, he left her with the injuries for 15 hours before an ambulance was called. As stated, she has life threatening injuries as a result of those -- that assault.” 32. The list of the respondent’s previous convictions exhibited before the court below indicated that he had received a sentence of 10 years imprisonment, with the final two years thereof suspended, in respect of that offence. Forensic Psychology Report 33. A forensic psychologist’s report was tendered in evidence in the court below. It should be noted that this report was dated 20/07/2023, and was procured in connection with the respondent’s then pending trial (on Bill No CE 38/2021) for the offence of threatening to kill or cause serious harm to William Martin. 34. In circumstances where the report, which had inter-alia reviewed the respondent’s forensic history (as self-reported to the psychologist), makes only minimal reference to the charge of false imprisonment then pending against the respondent and no reference at all to the charge of production in the course of a dispute of an article capable of causing serious injury, involving Ms. R, it may be inferred that the respondent neglected to inform the 15 psychologist of the detail of these matters. Moreover, the psychologist says he did not have sight of the Book of Evidence. The psychologist was also evidently unaware of the full circumstances of the respondent’s previous convictions, particularly the one which had resulted in a lengthy prison sentence for causing serious harm, including life changing brain injury, to a previous partner, contrary to s. 4 of the Act of 1997, although he appears to have been told by the respondent of the fact of previous sentences having been imposed, including one sentence of six years with one year suspended. If he had been aware of his full history, he would surely have referenced it given its gravity and the recidivist nature of the further charges then pending. Ostensibly therefore, the psychologist reported in circumstances where he had an incomplete picture as to the respondent’s criminal history and criminogenic needs, and in particular was lacking full information concerning previous serious violent offending conduct committed by the respondent, and recent further serious violent offending conduct to which he had signed pleas. 35. The report, for what it was worth in the circumstances, noted that the respondent asserts that he was the victim of child sexual abuse, at nine years of age. The alleged perpetrator was a male paternal uncle who is now deceased. The respondent left school at 14 years of age and went to work in his father’s contract cleaning business, where he worked for eight years while he also pursued an apprenticeship as a metalworker. 36. The respondent suffers from low mood precipitated by heavy drug and alcohol misuse. He is reported to have developed a strong addiction to a combination of alcohol and cocaine, and this has had a very significant effect on his physical health over the years. He has developed a host of physical health problems including morbid obesity, diabetes, liver damage, sleep apnoea and gastro-oesophageal reflux. It was contended that the respondent had remained drug-free since being received into prison on 15/11/2022 and had experienced improved physical and mental well-being over this period. 16 37. The psychologist reported that the respondent had received no prison disciplinary sanctions (P19s) and was the lead prisoner associated with the Alcoholics Anonymous and Narcotics Anonymous groups within the Midlands Prison. He had also engaged with the Red Cross and the Samaritans programmes within the prison. 38. The respondent did not report any current symptoms which would indicate the presence of, or onset of, an acute mental illness. He did not report any significant depressive symptoms and denied any active suicidal ideation. He was working on his physical fitness and using meditation techniques to manage his anxiety. Improved mental clarity had helped him review aspects of his life and this had prompted him to reach out to people and apologise for his past behaviour. 39. The respondent had expressed remorse to the psychologist for his behaviour towards Mr. Martin. He contended that he was upset at the time, was emotionally drained, and was tired. He explained that there had been some previous animosity between himself and Mr. Martin arising from a minor road traffic accident involving Mr. Martin’s sister. He stated to the psychologist that he had apologised to Mr. Martin and that he was extremely sorry for what he had done. He said that his mental state was not good on the date in question, and this had precluded him from managing the conflict situation in a less confrontational and aggressive manner. 40. The psychologist concluded that the respondent’s risk of offending related primarily to his capacity to rehabilitate his significant history of drug and alcohol misuse. He stated that the respondent’s enthusiastic adoption of a regime of physical fitness and meditation appears to be having beneficial results, and he expressed optimism that these gains would be maintained. 17 Sentencing Judge’s Remarks 41. On the 25th of September 2023, the judge in the court below passed sentence on the respondent for the offending charged on both bills. The sentencing judge noted that both matters were serious and involved harm to other individuals. He stated that he was “asked to approach the case on the basis that [he] should consider what is the offence that is more serious and that means more serious just in the length of the available sentence that is available”. The sentencing judge noted that the offence on Bill CE 26/2023, that involved a signed plea to a charge of false imprisonment was the “more serious” offence, as false imprisonment carries a maximum sentence of life imprisonment. It is clear therefore that he was referring to the cardinal seriousness rather than the ordinal seriousness of the offence. 42. The sentencing judge then noted the factual background to and procedural histories of both cases, as they had been described in evidence by Garda Margaret Leahy and by D/Garda Donal Corkery, respectively. 43. The sentencing judge then dealt with Bill CE 26/2023 first, stating that it is an offence which carries a maximum of life imprisonment. When considering an appropriate headline sentence for this offence, the sentencing judge took account of s. 40 of the Domestic Violence Act 2018 (“the Act of 2018”). He noted that: “When she was in the house, her phone was taken from her and she had no means of leaving the house. She was put in a chair and was effectively enjoined not to move from that. And then over a period of a number of hours, from about 7 pm to 11 pm, she was subjected to abuse but that included and that was -- that included taking out a knife and waving it and brandishing the knife around the place, certainly threatening her with it and stabbing the mantel place nearby on a number of occasions and then also offering physical violence to Ms R including by grabbing her throat and squeezing her throat, so that she started coughing and that is the start of what could 18 only be perceived by her as the start of a process of strangulation that raised that fear, that ultimate fear in her mind. It has also been given in evidence on behalf the prosecution that there were threats made that guns would be used. Mr Donegan has denied that, in interview to the gardai and doesn't say that he made any threats about guns. There is no question of guns being produced. There was reference to a shotgun in a car and a Glock in a fridge. And I accept that evidence from Ms R, despite the fact that Mr Donegan is denying it. But those threats, I am sure they were part of the overall framework of fear in which Ms R was put into, they're less immediate than the brandishing of the knife and the stabbing of the mantelpiece and the grabbing of the windpipe and the crushing of -- the crushing movement on the windpipe of Ms R. 44. The sentencing judge then considered what should be the appropriate headline sentence for the false imprisonment offence. In doing so, he considered the respondent’s culpability, and the harm done to Ms. R as reflected in her victim impact statement. He further had regard to a number of comparator cases, including People (DPP) v. Tyler Lewis [2022] IECA 231; People (DPP) v. Ioan Lingurar [2023] IECA 172 and People (DPP) v. C.P. [2023] IECA 9. 45. In nominating his said headline sentence the sentencing judge referenced both the fact that s. 40 of the Domestic Violence Act 2018 was engaged on the facts of the case, and also the respondent’s previous convictions for relevant offences as being aggravating factors. He said that: “I'm of the view that, but for the element, the section 40 element, that's the fact that this was domestic violence and also the fact of the previous history, that the offending would fall in the mid-range of the sentences that are available to me.” 19 46. However, he went on to characterise the relevant previous convictions, and in particular the respondent’s conviction for causing serious harm to a previous partner contrary to s. 4 of the Act of 1997, an incident in which the victim had been caused brain damage and had been callously left lying in a very injured and bad state physically for some 15 hours before receiving assistance, as “very serious” aggravation. He referred to “a pattern of previous attacks upon partners.” 47. He added that: “The production of the knife in the course of the false imprisonment was part and parcel of the same offending. It certainly was a considerable aggravating factor in the false imprisonment, and I've taken that into account.”. 48. The sentencing judge was satisfied that such was the extent of aggravating circumstances established in evidence before him, that “as far as the headline indication is concerned that for this offending, the offence does move into the lower ranges of the third band, so, normally what's the highest band.” 49. In the circumstances the sentencing judge nominated a headline sentence of 125 months for the false imprisonment offence. 50. He went on to identify a headline sentence of 40 months’ imprisonment as being appropriate for the production of a knife offence. Because he considered the production of the knife in the course of the false imprisonment to be “part and parcel” of what was, in reality, a single incident, the ultimate post-mitigation sentences for the false imprisonment offence and for the production of the knife offence would, once determined, be made concurrent inter se. 51. In relation to mitigation in sentencing on Bill No CE 26/2023, the sentencing judge noted that there was evidence of considerable family support, of good engagement by the respondent in prison, and of a marked improvement in the respondent’s health since going 20 into prison. He then addressed the report of the forensic psychologist noting, as indeed we have already done, that: “this forensic psychology report doesn't deal with the most saliant feature of Mr Donegan's offending. The fact that he has resorted to violence so often or threats of violence and violence in this case, against former partners and from that point of view, the assessment doesn't deal with the most significant feature of his life. It isn't of any great value to me. Now, there is no aggravating circumstances on the fact that he hasn't been able to -- that he hasn't sought out, particularly, the assistance dealing with this problem. There are the indications that he's doing well, that he's dealing with Narcotics Anonymous, Alcoholics Anonymous and also dealing with issues with the -- I think it was cooperating with the prison regime that he was dealing with those matters. But -- and those are issues that have to be dealt with. But they don't deal with that underlying issue of this resort to violence against women that he professes to care for but who he carries out these issues.” 52. He went on to say: “There isn't an underlying psychiatric condition. But there certainly is a syndrome of offering violence to women which is recurrent, and the psychological report doesn't really give me any great assistance in dealing with that issue. And so, I'm left with that. I've a psychology report of limited value. I have indications of family support. I have good engagement in prison. I have improvement in health, which the psychological report does stress heavily. But really, when it comes down to it, I think what I have is a signed plea as being the significant element of mitigation. And from the victim's point of view, I can understand why they should feel that maybe someone should -- the sentence should not be reduced just because they admit that they did it. But it is, in a case of this nature, it is less traumatic for victims if they -- if there is that 21 early acknowledgement of wrongdoing. It means that legal procedures aren't as traumatic as they would otherwise be, and then it does indicate an acceptance of responsibility which the Court should take into account.”. 53. Taking mitigation into account, the sentencing judge decided that the appropriate sentence to impose for the offences on Bill No CE 26/2023 was 83 months imprisonment in respect of the false imprisonment and 25 months imprisonment in respect of the production of a knife, both sentences to be served concurrently. 54. Before specifying a commencement date for those sentences, the sentencing judge felt it necessary to proceed first of all to deal with the offence on Bill No CE 38/2021, because his sentences on that bill would potentially interrelate with any sentence he might impose on Bill No CE 38/2021, in circumstances where the later offences in time (i.e. those on Bill No CE 26/2023) had been committed while the respondent was on bail in respect of an earlier offence in time (i.e., that on Bill No CE 38/2021). 55. In addressing the offence on Bill CE 38/2021, the sentencing judge stated: “And then I move on to the threat to kill against Mr Martin. And as I say, the indications are that, certainly, that Mr Martin was aware -- the indications are that Mr Martin was aware of the previous violence by Mr Donegan, but even aside from that, even if that wasn't so, if that isn't established, Mr Donegan knew that he had been guilty of these previous acts of violence in the past and had caused horrendous injuries to a person he professed to care about, and in those circumstances, for him to make that threat to kill, it's a significant matter and I can see why Mr Martin would be concerned. And I can see how there's a high degree of culpability in making that threat. However, there wasn't violence offered. There wasn't a weapon produced. There was obviously no element of false imprisonment. It was a relatively short altercation. Ms Wickham, I think, was able to record some of it but not the most 22 relevant portions of it. There were third parties about and I am sure it caused distress. But I'm taking it that the appropriate sentence for that matter would be the headline indication of 25 months' imprisonment. And then, in the case for -- obviously, the psychology report is dealt with -- deals with the attempts to deal with Alcoholics Anonymous and Narcotics Anonymous, and those are of some weight. But then I have the plea. The plea really couldn't have been any later and in addition, the plea wasn't -- it couldn't have been any later. The jury was empanelled. After an adjournment being sought for the trial, the matter proceeded for a long period of time. And I think the appropriate final sentence to be imposed in respect of that offence would be one of 20 months' imprisonment.”. 56. The sentencing judge then observed that as a matter of law, as the respondent was on bail for Bill No CE 38/2021 when he committed the offence of Bill No CE 26/2023, the sentences imposed had to be consecutive to each other in respect of the two bills. However, he went on to say: “I don't know, as a matter of law, which has to go first, which sentence has to be imposed first. And I think I can, I do have discretion to structure it in that way. Now, it seems to me, however, I -- there's two ways I could deal with this. I could say that the two sentences could be consecutive and then decide whether there should be a reduction in the amount of time served because of totality, the length of the two sentences being served one after the other, or I could consider whether it's appropriate to deal with that by way of suspending any portion of the sentence. Now, I've no intention of suspending any portion of the sentence that's imposed in respect of the false imprisonment. There were suspensions -- Mr Donegan has attacked three women in the past. He has received a suspended sentence on each occasion and has gone on to offend against Ms R the way that he has. So, I am -- that sentence -- the 23 two sentences will be concurrent. The two counts will be concurrent, the production of the knife and the false imprisonment, but no portion is going to be suspended. The sentence that's actually been imposed is 83 months. I am going to say that that should be served first, even though that doesn't -- in logic, that mightn't follow. Now, then in addition to that, after that 83 months is served, then the 20 months falls to be served on the offences against Mr Martin. I think it's the -- if there is going to be that period of time served in prison, and if there is hopes of ever reintegrating Mr Donegan into society, despite the fact of the suspensions in the past, but also, I think to give a further, perhaps, cushion on to the victims, rather than reduce that 20 months, I am going to suspend -- because of totality, I am going to suspend part of it. What I'm going to do is I'm going to suspend the last nine months of that 20-month sentence.” 57. He added that the practical intent of his order was that the respondent should serve a sentence of 94 months imprisonment in total, being 83 months on Bill No CE 26/2023 plus 11 months (i.e. a sentence of 20 months with 9 months suspended) on Bill No CE 38/2021 consecutive to the 83 month sentence. He backdated the commencement of the sentences on Bill No CE 26/2023 to the 15th of November 2022. 58. The ultimate cumulative sentence in respect of both bills was therefore 103 months imprisonment with 9 months suspended. Grounds of Application 59. The basis on which the Director brings her present application is set out in her Notice of Application for Review of Sentence dated the 23rd of October 2023. The following grounds are pleaded in support of her application: 24 1. “The sentencing judge erred in law in failing/refusing to make the sentence imposed on the offence on Bill CE 26/2023 consecutive to that imposed for the offences on Bill CE 38/2021 where the evidence established that the offences on CE 38/021 were committed previous to those on CE 26/2023 and the offences on CE 26/2023 were committed on bail to those on CE 38/2021. 2. The sentencing judge erred in law in backdating the sentences imposed on CE 26/2023 where the evidence established that the offences concerned were committed on bail to those in CE 38/2021 and where it was mandatory that the sentences commence on the lawful expiry of the sentence imposed for the previous offence on CE 38/2021. 3. The sentencing judge erred in law in suspending part of the sentence imposed on CE 38/2021 where that offence occurred first in time and where the evidence established that the offences on CE 26/2023 were committed on bail to those in CE 38/2021 and where it was thus mandatory that the sentences on CE 26/2023 commence on the lawful expiry of the sentence imposed on CE 38/2021. 4. The sentencing judge erred in suspending any portion of the sentence where there was evidence before him that the defendant had received a number of suspended sentences in the past and had continued to reoffend. 5. The sentencing judge erred in law in his approach to the principles of proportionality and totality where this necessitated consideration of the fact that the sentences for the offences on CE 26/2023 were mandatory consecutive to those on CE 38/2021. 6. The sentencing judge having indicated a headline of 25 months in respect of the threat to kill offence on CE 38/2021 and having reduced that sentence to 20 months on account of the late plea of guilty erred by extending further leniency without an identified basis in suspending 9 months of the sentence. The court having identified as 25 features that the respondent had received a number of suspended sentences in the past and had continued to reoffend and where the court had decided that it would be inappropriate to suspend a portion of the sentence on CE 2/2023. 7. The sentencing judge placed disproportionate weight upon and gave an excessive discount for the limited mitigating feature available, being the signed plea on CE 26/2023and the late plea of guilty on CE 38/2021. 8. The sentencing judge gave insufficient weight to the significant aggravating features and in particular to the fact that a knife was produced during the false imprisonment, the significant previous convictions involving violence, that the offences on CE 26/2023 were committed on bail and the effect of the offences on both victims as evidenced in the victim impact statements”. Submissions on Appeal Applicant’s Submissions 60. The applicant submits that the sentence imposed by the Circuit Criminal Court was unduly lenient and that it erred in law in the approach taken to sentencing the respondent and that the errors represent a substantial departure from established sentencing principles. 61. The applicant submits that the circumstances of the present case were far more serious than those of the Tyler Lewis [2022] IECA 231 case, which ostensibly influenced the sentencing judge. 62. In addition, the applicant contends that the sentencing judge did not accord sufficient weight to the aggravating features of the offence (implicit in this submission is that the nominated headline sentence was too low); and further afforded too much credit to the mitigation put forward on the respondent’s behalf. 63. In regard to making the sentences consecutive on account of offending while on bail as required by s. 11(1) of the Criminal Justice Act 1984 (“the Act of 1984”), the applicant 26 states that “It is apparent that the court was unsure which sentence had to be imposed first and the court did not reference and was not referred to the specific terms of Section 11 of the Criminal Justice Act 1984 (as amended)”. 64. Further, the applicant complains that the sentencing judge failed to have regard to s. 11(4) of the Act of 1984, as inserted by s. 10 of the Bail Act 1997, which provides that a sentencing court must treat the fact that an offence was committed while on bail as an aggravating factor in sentencing, quite apart from any requirement under s. 11(1) of the Act of 1984 to impose consecutive sentences where possible. 65. The applicant submits that having considered the detail of the course of the sentencing that the errors identified in the Grounds of Appeal are borne out and are readily apparent. 66. The applicant submits that the approach of the sentencing judge in dealing with the second in time offence first meant that when it came to deal with the issue of totality, he found himself to be in a situation where guidance law offered by this Court in previous case law was not followed. The applicant refers the Court to the cases of People (DPP) v. Healy (1989) 3 Frewen 188 and People (DPP) v. Cole unreported, Court of Criminal Appeal, 31 July 2003 in support of this contention. Respondent’s Submissions 67. The respondent submits that even if the sentencing judge erred in law in the order and manner in which he made the sentence on one Bill consecutive to the other, the sentences are consecutive regardless and therefore the principle of mandatory consecutive sentencing was adhered to. The respondent contends that while there may have been a technical error in principle in the sentencing judge’s approach, it was not one that had given rise to an unduly lenient sentence. 68. The respondent submits that in the circumstances of this case, the failure to sentence as the “black letter of the law requires” is immaterial as it has no effect on the sentence. The 27 respondent further submits that while there might be an error in law, there is certainly no error in the application of the principle underlying s. 11 of the Act of 1984. 69. In addition, the respondent submits that the reasons given by the sentencing judge for proceeding as he did were appropriate reasons, given the need to suspend part of one of the sentences. The respondent also submits that the sentencing judge made no error in law in backdating the respondent’s sentence to the day that he went into custody on Bill CE 26/2023. 70. Further, the respondent submits that the sentencing judge did not err in his approach to the principles of proportionality and totality. The respondent maintains that the sentencing judge was bound to consider the totality principle and adhered to the jurisprudence of this Court (DPP v. Butchart [2021] IECA 338) in doing so. 71. The respondent submits that the sentencing judge did not err in principle in imposing a further suspended sentence, nor did he err in “extending further leniency without an identified basis” as is argued in ground six of the Director’s grounds of application. The respondent maintains that the sentencing judge did what was required of him and his actions do not give rise to a sentence that is in any way unduly lenient. 72. In addition, the respondent submits that affording credit for mitigating features is not an error in principle nor does it lead to an unduly lenient sentence. Court’s Analysis & Decision 73. Having regard to the grounds advanced, and the submissions of the parties (both written and oral), we think it is convenient to address the issues raised under a number of subheadings. We will therefore consider (i) the sentencing judge’s approach to the assessment of gravity and the setting of a headline sentence; (ii) his approach to making allowances for mitigation and the setting of initial post mitigation sentences (before any consideration of consecutivity); (iii) the structuring of the overall sentence, having regard to 28 s. 11(1) of the Act of 1984; and (iv) his consideration of proportionality and whether any final adjustments were required in application of the totality principle. 74. Before doing so, however, it is necessary to briefly allude to the by now well settled legal principles that apply in undue leniency appeals. These were again summarised and reiterated, between paragraphs 42 and 47 inclusive, in this Court’s recent judgment in People (DPP) v. Rigney [2025] IECA 105 and suffice it to say that those are the principles which we have applied in our consideration of the issues in the present case. The assessment of gravity and the setting of a headline sentence. 75. We do not fault the sentencing judge for regarding the false imprisonment offence on Bill No CE 26/2023 as being the most serious offence amongst those for which he was required to impose sentence. The maximum potential penalty is one of life imprisonment, which means that the offence must be ranked as amongst the most serious in the criminal calendar in terms of its cardinal seriousness. The ordinal seriousness of any individual instances of false imprisonment may of course vary from case to case, and it is the job of sentencing courts to impose an appropriate and proportionate sentence having regard to the gravity of the offending conduct of a particular case as committed by the particular offender. The sentencing judge in effect treated the false imprisonment offence as being the gauge offence for the purpose of the sentencing he was engaged in, and he was entitled to do so. 76. False imprisonment is a difficult offence for which to sentence, not least because of the wide variety of circumstances in which the offence may be committed, potential wide variations in culpability, and potential wide variations in the harm done. There is, to date, no appellate guideline judgment on sentencing in false imprisonment cases, nor is there as yet any guideline in that area promulgated by the Judicial Council pursuant to the sentencing guidelines provisions enacted within Part 6 of the Judicial Council Act, 2019, and specifically s. 91 and s. 92 thereof. In the absence of guidance, sentencing issues must therefore be 29 approached from first principles, and applying established black letter sentencing law to the extent that it exists, and a sentencing judge is also at liberty to draw such legitimate assistance from case comparators as might be available to him or her, always bearing in mind the caveats frequently reiterated by this Court concerning the limited nature of the assistance that can be drawn from comparators. In regard to the limitations of comparators, we would refer specifically in that regard to our remarks in paragraphs 97 and 98 in our judgment in The People (DPP) v. Maguire [2018] IECA 310, reiterated again most recently in The People (DPP) v. Cassidy [2025] IECA 98. 77. Insofar as seeking to discern a trend in sentencing from previous cases is concerned, it is legitimate to do so providing a sufficiently representative sample of cases is surveyed. Indeed, this has been the modus operandi of the Irish appellate courts in their production of such appellate guideline judgments as they have issued to date, in that they have, by and large, adopted a bottom-up approach to reflecting existing sentencing practice by seeking to survey a sufficiently representative sample of cases, categorising those cases with reference to their gravity and the penalties applied, dividing the overall range of potential penalties into convenient sub ranges and providing indicative examples of the types of future cases that might fall into each sub-range. 78. While there is as yet no formal appellate guideline judgment on false imprisonment, this Court has, in a number of cases, had cause to review sentencing practice to date in false imprisonment. See in that regard the judgment of Kennedy J, on behalf of the Court, in People (DPP) v. Tyler Lewis [2022] IECA 231 in which she surveyed People (DPP) v. Halligan [2010] IECCA 17, People (DPP) v. Maguire [2018] IECA 71, People (DPP) v. Freeman [2018] IECA 312, People (DPP) v. Michael Cummins [2018] IECA 413 and People (DPP) v. Michael Cummins [2020] IECA 42. Yet more recently, a slightly more comprehensive survey was undertaken by Edwards J, on behalf of the Court, in People (DPP) 30 v. Soufiane Mountassir [2024] IECA 317 in which he surveyed, in addition to the Lewis case, and those cases reviewed by Kennedy J in Lewis, certain further cases on false imprisonment to which we were referred by the parties, viz People (DPP) v. Brady and Tate [2018] IECA 341; People (DPP) v. Dowdall [2018] IECA 122; People (DPP) v. Stefan Schaufler [2020] IECA 299; People (DPP) v. Niepogoda and Laaki [2018] IECA 338; People (DPP) v. Philip Byrne [2024] IECA 107; People (DPP) v. Donal O’Hara [2019] IECA 111; People (DPP) v. I.A. [2024] IECA 178; People (DPP) v. Cameron Curtis [2024] IECA 101; People (DPP) v. Keogh [2024] IECA 132; People (DPP) v. Stephen Connor [2020] IECA 255; and People (DPP) v. Mathew Kelly [2019] IECA 11. 79. The judgment in the Mountassir case postdated the imposition of the sentences currently under appeal and for that reason the sentencing judge could not have regard to it. It should also be noted that the Mountassir judgment, in so far as it found a sentence imposed at first instance to be unduly lenient, is currently under appeal to the Supreme Court, see [2025] IESCDET 51. Insofar as the present case is concerned, however, the sentencing judge did properly have regard to the Lewis judgment in assessing gravity and took account of two other cases of which he was aware. However, even without them, significant aggravating features would have been identifiable to the sentencing judge from first principles. 80. It is clear that the extent of the traumatisation of the victim and the duration of the ordeal are relevant factors in any case of false imprisonment. It is also relevant if the victim was caused concurrent physical injuries. On the issue of culpability, any evidence of preparation or planning is clearly relevant, so the manner in which the victim was falsely imprisoned needs to be rigorously examined and considered. Concurrent offending such as assaulting the victim while he/she is imprisoned, or issuing threats to harm him/her, is also relevant in this context. It is further relevant if the parties are, or have been, in an intimate partner relationship as this will engage s. 40 of the Act of 2018. Further, if, as in the present 31 case, the offending has been committed while the offender was on bail for a previous offence, this engages s. 11(4) of the Act of 1984 and it is a circumstance that must be treated as aggravating regardless of whether or not the imposition of a consecutive sentence pursuant to s. 11(1) of the same Act is possible in the circumstances of the case. 81. While it is not generally the case that previous convictions are to be treated as an aggravating circumstance, and it is true that in most cases they merely result in progressive loss of the mitigation that goes with being of previous good character, it is at this stage well established that having previous convictions for “relevant” offending, i.e. offending of the same type, or offending which comes within a category of related offences, can be treated as aggravating. 82. In the present case, the sentencing judge did carefully assess the offender’s culpability and the harm done having regard to the manner in which the false imprisonment was affected. We think he was careful and rigorous in doing so, and we think that he was right in treating the production of a knife as “part and parcel” of the transaction and as being aggravating in that situation. He was further right in regarding the respondent’s previous record as being significantly aggravating. He alluded several times in his sentencing remarks to s. 40 of the Act of 2018, and we are satisfied that he fully appreciated that s. 40 was engaged and was alive to the fact that he was required, on account of the statutorily expressed policy, to impose a higher sentence than he would otherwise have done. 83. The sentencing judge does not specifically reference the requirement in s. 11(4) of the Act of 1984 to treat the fact of the respondent having offended while on bail for a previous offence as aggravating. In that context we need to consider whether, taking the sentencing judge’s detailed sentencing remarks in the round, it may nonetheless be inferred that he was aware of his obligation in that regard, and that he took it into account in setting the headline sentence. He was clearly focused on the necessity to reflect in his sentence the fact that there 32 had been offending while on bail. He was conscious of the requirement to impose a consecutive sentence, if possible to do so, to reflect that and he clearly attempted to do so, albeit that the manner in which he sought to give effect to that is now criticised, an issue that will be addressed separately below. We think it is of significance, however, that in the manner in which the sentencing judge structured his sentence for the purpose of addressing the offending on bail aspect of the case, he expressed determination that there should be no suspended element to whatever sentence was imposed for the false imprisonment offence. In taking this stance, he went above and beyond any requirement to consider a possible consecutive sentence and we think that this reflects an appreciation by him that the mere fact of having offended on bail was aggravating in and of itself, and that this, coupled with the fact that the respondent had reoffended notwithstanding receiving partly suspended sentences in the past, was his motivation for wanting to ensure that no portion of whatever sentence would be imposed for the false imprisonment offence would be suspended. We are therefore not persuaded that the sentencing judge failed to treat the fact of the respondent having offended while on bail as aggravating in and of itself, notwithstanding the fact that he does not specifically reference doing so in his detailed sentencing remarks. We are not prepared in the circumstances to find as a fact that the sentencing judge failed to have regard to s. 11(4) of the Act of 1984. 84. Having considered the circumstances of the case, and specifically issues bearing on the offender’s culpability and the harm done, the sentencing judge determined upon a headline sentence of 125 months (which for ease of appreciation translates into 10 years and 5 months). He had initially considered that “but for”, what he describes as “the s. 40 element”, and the offender’s bad previous record for relevant offending, the case fell to be located in the mid-range of potential penalties. In doing so, he approached the matter on the basis that the range of potential penalties running from non-custodial options up to and 33 including imprisonment for life could, based on the approach of the appellate courts to other offences carrying a maximum determinate sentence of up to life imprisonment, be conveniently divided four ways into a low range of 0 to 5 years (or 60 months); a mid-range from 5 to 10 years (or 120 months); a high range from 10 to 15 years (or 180 months); and a further range above the high range (from 180 months up to and including life imprisonment) for truly egregious cases. He went on to say that, factoring in the s. 40 element and the aggravating previous convictions, the respondent’s offending was properly to be located towards the lower end of the high range. It was on that basis that he indicated a headline sentence of 125 months. 85. We are satisfied that the sentencing judge’s reasons for locating the headline sentence where he did were cogent and transparent. We are further satisfied that to have so located it was within the range of his discretion. Indeed, while the offending was very serious and significantly aggravated, the headline sentence nominated was not out of kilter, certainly in terms of its leniency, with headline sentences nominated by this Court in cases such as Lewis and Mountassir, and other potential comparators cited above. We make that observation merely in passing in circumstances where we believe great caution is required in the utilisation of comparators, and acknowledging that none of the comparable cases replicate in closely approximate terms the facts of the present case. However, even ignoring possible comparators and simply approaching the matter from first principles, we are satisfied that the headline sentence of 125 months (i.e. 10 years and 5 months) for the false imprisonment offence was within the sentencing judge’s legitimate range of discretion. 86. It is not necessary to consider the headline sentence nominated in respect of the production of a knife offence, as the sentence for that offence was subsumed in the greater sentence for the false imprisonment and in any case no complaint is made in respect of it. Equally, no complaint is made in respect of the headline sentence nominated for the offence 34 of threatening to kill or cause serious harm (involving Mr. Martin), the subject matter of Bill No CE 38/2021. Allowances for mitigation and the setting of initial post mitigation sentences. 87. In respect of the false imprisonment offence, as the gauge offence, the sentencing judge discounted by 1/3 from the headline sentence he had nominated to reflect mitigation. He correctly pointed out that the most significant mitigating factor was the plea of guilty. Moreover, the respondent had signed a plea of guilty in the District Court, which made it of relatively high value. In saying this, we have had regard to the individual facts of this case, and the approach to signed pleas commended by the Supreme Court in People (DPP) v. Faulkner [2024] IESC 16, and most recently applied by this Court in the judgment of McCarthy J in People (DPP) v. McLoughlin [2025] IECA 26. 88. There were other factors which were not strictly mitigating (as the sentencing judge pointed out) which were in the nature of personal circumstances, and adversities experienced, by the respondent during his life, as outlined in the forensic psychologist’s report to which the sentencing judge made specific reference. However, while he was entitled to have these taken into account, they could only have been afforded modest significance and would not have attracted much weight in the circumstances of the case. The forensic psychologist’s report references some tragedy in the respondent’s past, some physical health issues, some alcohol and addiction issues in the past, and some mental health difficulties in the form of past episodes of low mood and depression with occasional suicidal ideation precipitated by heavy drug and alcohol use. However, there was no indication that addiction issues, or mental health issues, had played a role in his offending involving Ms. R. The forensic psychologist’s report was obtained in connection with an anticipated sentencing in regard to the offending involving Mr. Martin. It was not updated to include the offending involving Ms. R. It is reasonable to suppose that if issues identified by the psychologist had a bearing on the 35 respondent’s false imprisonment and production of a weapon in the instant offending involving Ms. R, the report would have been updated and these issues specifically highlighted. They were not. The report did not offer the sentencing judge any help with respect to the critical issue of the danger the respondent posed towards persons with whom he is or has been in an intimate relationship, or offer any help with respect to the likelihood of reoffending. 89. The weighing of mitigating factors and personal circumstances to be taken into account is invariably done by instinctive synthesis. The sentencing judge is not required to itemise and attribute specific weightings to individual mitigating factors and personal circumstances. The sentencing judge in this case, having synthesised the available mitigating factors and information concerning personal circumstances, decided that it would be appropriate to discount by one third. We are satisfied that that was within his legitimate range of discretion, and find no error with respect to how he approached making allowances in that regard or in setting an initial post mitigation sentence of 83 months imprisonment in respect of the false imprisonment offence, and of 25 months imprisonment in the case of the production of the knife. 90. The respondent was entitled to less discount in the case of the offence involving threatening to kill or cause serious harm to Mr. Martin, because the plea was offered very late in the day. It is logical that this should be the case, but in any event it has been confirmed as being the correct approach in the Supreme Court’s recent decision in the Faulkner case, previously cited, concerning the treatment of pleas of guilty. As the sentencing judge in the present case said, the respondent’s plea (on Bill No 38/2021) really could not have been any later. In those circumstances the sentencing judge opted to discount from the headline sentence in that case for all mitigating factors including the late plea by a little less than one quarter (i.e., 5 months) rather than the one third by which he had discounted in relation to the 36 false imprisonment and production of a weapon offences. In light of the Faulkner and McLoughlin jurisprudence on the treatment of pleas of guilty, this was perhaps towards the generous end of the range of discretion available to the sentencing judge, given that the plea was very late and the evidence against the respondent was strong. However, while that might have been so, we do not believe that the sentencing judge exceeded his margin of appreciation. So, once again, we find no error in the sentencing judge’s approach and are satisfied that the level of discount afforded was within the judge’s legitimate range of discretion. Sentence structuring, having regard to s. 11(1) of the Act of 1984. 91. We have a clear view on this issue. The sentencing judge was significantly in error in how he structured his sentence. In fairness to him, s. 11(1) of the Act of 1984 was not opened to him by counsel, nor was the leading work on sentencing in so far as it deals with this issue, namely Prof Thomas O’Malley’s, “Sentencing Law and Practice”, 3rd edn, 2016, which correctly states what the law requires. 92. It is appropriate to set out the terms of s. 11(1) of the Act of 1984. It provides: “Any sentence of imprisonment passed on a person for an offence— (a) committed while on bail, whether committed before or after the commencement of section 22 of the Criminal Justice Act 2007, or (b) committed after such commencement while the person is unlawfully at large after the issue of a warrant for his or her arrest for non-compliance with a condition of the recognisance concerned, shall be consecutive on any sentence passed on him or her for a previous offence or, if he or she is sentenced in respect of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive sentences as 37 required by this section are passed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed 2 years.” 93. It is clear from this provision that, where an offender is being sentenced for an offence which he or she committed while on bail for a previous offence, the sentence to be imposed for that offence should, if possible (it is not always possible, e.g. where the sentence for a previous offence has already been served, or where the previous offence was dealt with non- custodially) be made consecutive to the sentence imposed for the previous offence. Moreover, it has previously been determined in People (DPP) v. Robinson, unreported, Court of Criminal Appeal, 20th December 2002, and reiterated in People (DPP) v. Smith [2013] IECCA 44 that the expression “previous offence” as used in s. 11(1) of the act of 1984 means an offence committed before that for which the consecutive sentences be passed. Applying this to the present case the offence involving a threat to kill or cause serious harm to Mr. Martin, and the subject matter of Bill No CE 38/2021, was the previous offence. Accordingly, the sentencing judge did not have a discretion as to which offence was made consecutive to the other. Rather, on a correct construction of the statute, he was required to make the sentences which he was contemplating in respect of Bill No CE 26/2023, i.e. the sentences for false imprisonment and production of a knife, consecutive to any sentence that he intended imposing on Bill No CE 38/2021 for the offence involving a threat to kill or cause serious harm to Mr. Martin. 94. We partially, although perhaps do not fully, appreciate why the sentencing judge was reluctant to make the sentence on Bill No CE 26/2023 consecutive to the sentence on Bill No CE 38/2021, rather than the other way around which was his preference. To do so might have reduced his options, in the event that he considered it was necessary to adjust the cumulative or global figure arising from both sentences for totality. However, it would only have reduced his options if he felt constrained to make any necessary adjustment by way of a partial 38 suspension of the sentence being made consecutive to a previous sentence. We understand that he did not wish to suspend any portion of the sentence for the false imprisonment offence, for the reasons he outlined. However, if he felt an adjustment was necessary for totality he was not confined to giving effect to this by means of the partial suspension of the sentence to be made consecutive. He could have reduced that sentence somewhat by way of a straight reduction, rather than suspending any portion, and have explained the need to do so on the basis of having to apply the totality principle. 95. It has been argued before us that even though the sentencing judge may have been in error in how he structured his sentence, it made no practical difference in the circumstances of this case. Accordingly, the case is made that notwithstanding any error, the impact of it was not such as to render the judge’s overall or cumulative sentence unduly lenient. 96. While we agree that the sentencing judge’s failure to apply the statute correctly made no practical difference to the global or overall sentence to be served by the respondent in the circumstances of this case, we do not think that the sentences can stand as presently structured having regard to the serious nature of the error. It does not follow from that, however, that we regard the component sentences, or indeed the global or overall sentence, as being unduly lenient in consequence of the error. That does not follow. Overall proportionality and the totality principle. 97. There is the further issue, which also requires to be considered, as to whether the combined sentences resulted in a global or overall sentence which was proportionate having regard to the circumstances of the case, and whether some intervention was necessary in application of the totality principle. 98. The sentencing judge clearly felt that some adjustment was necessary in the interests of totality, and he indicated that he would make the necessary adjustment by suspending the 39 last nine months of the 20 month sentence that he was imposing for the offence of threatening to kill or cause serious harm to Mr. Martin. We consider that this was a generous proposed reduction in the circumstances of the case, but have not been persuaded that it was outside of the sentencing judge’s legitimate range of discretion. 99. Accordingly, we do not consider that the adjustment to the initial global or cumulative sentence effected in application of the totality principle, by suspending the final 9 months of the later sentence, rendered per se the global or cumulative sentence unduly lenient. Decision on the Undue Leniency Issue 100. In conclusion, we have not been persuaded that the effective global or cumulative sentence imposed by the sentencing judge at first instance was unduly lenient. We do not consider that it was substantially outside the norm. The application to review the sentence on grounds of undue leniency is therefore refused. 101. That having been said, we have identified a significant error in how the sentencing judge at first instance structured his sentence, which we consider must be rectified by the court of its own motion. For that purpose, and for that purpose only, we will in exercise of discretion quash the sentence imposed at first instance and proceed to re-sentence the respondent. Re-sentencing 102. In re-sentencing the respondent solely for the purpose of appropriately restructuring the sentence we intend to keep faith with the assessments of the sentencing judge at first instance with respect to gravity, the appropriate allowances to be made for mitigation and personal circumstances, and with respect to overall proportionality. 103. Accordingly, in respect of the first offence in time, namely the offence of threatening to kill or cause serious harm to Mr. Martin, which is the subject matter of Bill No CE 38/2021, we will again nominate a headline sentence of 25 months imprisonment, and 40 discount from that by 5 months to reflect mitigation and personal circumstances, leaving an initial post mitigation sentence of 20 months. 104. In respect of the second offences in time, namely the offences of false imprisonment and production of a knife involving Ms. R, which are the subject matter of Bill No CE 26/2023, and which were committed while the respondent was on bail in respect of the previous offence, we will again nominate a headline sentence of 125 months imprisonment in respect of the false imprisonment charge, and a headline sentence of 40 months imprisonment in respect of the charge of producing a knife. We will again discount by 42 months in the case of the false imprisonment offence, and by 15 months in the case of the charge of producing a knife, leaving initial post mitigation sentences of 83 months and 25 months imprisonment, respectively, for those offences. The sentences of 83 months and 25 months imprisonment are to be served concurrently inter se. 105. Turning then to the statutory requirement in s. 11(1) of the Act of 1984 to have recourse, if possible, to consecutivity in circumstances where the offences on Bill No CE 26/2023 were committed while the respondent was on bail for the offence the subject matter of Bill No CE 38/2021, we will make the sentence of 83 months for the false imprisonment offence consecutive to the sentence of 20 months for the offence of threatening to kill or cause serious harm to Mr. Martin. 106. It is necessary at this point to have regard to overall proportionality, and to consider whether any adjustment is required in the interests of totality. Keeping faith with the assessment of the sentencing judge at first instance in that regard, we will adjust to reduce the aggregate period to be served by 9 months. As previously mentioned, there are at least two ways in which this can be done. It could be done by way of a straight reduction of the 83 months for the false imprisonment offence by 9 months. Alternatively, it could be done by way of a partial suspension of 9 months of the 83 month sentence. We are not unsympathetic 41 to the views of the sentencing judge at first instance that to suspend any portion of the 83 month sentence would be optically unattractive, particularly in circumstances where the respondent has had the benefit of suspended sentences before and has still reoffended. Nevertheless, using the suspended sentence option means that a sword of Damocles will be held over the respondent for the period of the suspension, and that if he reoffends during that period, he can be called upon to serve the suspended portion, or a part thereof. That would not be true were the adjustment to be made by way of a straight reduction. On balance, while understanding the reticence of the sentencing judge at first instance to have recourse to a suspended sentence in the case of the false imprisonment offence we feel that this is nonetheless the appropriate way in this case to give effect to the necessary adjustment for totality. Accordingly, we will suspend for a period of three years the final 9 months of the 83- month sentence imposed for the false imprisonment offence, leaving an effective global or cumulative sentence of 94 months to be served (assuming the conditions on which the partial suspension is being granted are adhered to). 107. The conditions of the suspension will be that the respondent should keep the peace and be of good behaviour for a period of three years from the date of his release. Furt